A View From the Bench

By Andrew Sullivan

Published: September 26, 1999

AN AFFAIR OF STATE

The Investigation, Impeachment, and Trial of President Clinton.

By Richard A. Posner.

276 pp. Cambridge, Mass.:

Harvard University Press. $24.95.

It would be hard to imagine anything a sane person would want to avoid more than a thorough re-examination of the Lewinsky scandal. The trauma sits in the collective unconscious like some awful meal from which relief will only be even more unpleasant. For this predicament, Richard A. Posner's book ''An Affair of State'' might best be described as a revitalizing digestive.

Posner's direct field is the law -- he is the chief judge of the United States Court of Appeals for the Seventh Circuit and a senior lecturer at the University of Chicago Law School -- but he has also long been interested in the relationship between sex and legal and moral theory. He is a grown-up and thinking conservative, so in many ways he is a perfect man for the task, and this book doesn't disappoint.

Posner makes you recall all over again why 1998 and the first six weeks of 1999 were such a riveting time, and how those months dramatized our culture's deepest political and moral disagreements and, in some strange fashion, helped resolve them. But his most valuable contribution is legal. In a way only good judges can do, he manages both to portray the ambiguity of constitutional law -- and few areas are as ambiguous as the constitutional criteria for impeachment -- and yet not shy from judgment about what actually happened and what to make of it.

His sharpest judgment is reserved for President Clinton. Posner has little time for the ''Clinton-haters,'' as he unequivocally calls them, but he is meticulous in exposing how Clinton lied, committed perjury and obstructed justice for the better part of a year. Most of these lies are familiar even to the President's defenders -- his preposterous denial of sexual relations with Monica Lewinsky, for example, or his denial of encouraging her to testify falsely in her affidavit in the Paula Jones sexual harassment suit. But Posner goes farther, to show how Clinton's casuistic evasions of the truth were also perjurious. Take the excruciating definition of ''sexual relations'' in the Jones suit, in which Clinton argued that in a sexual encounter between two people, it was possible for only one person to have sex. ''Even if Clinton was completely passive,'' Posner presses home, referring to the Jones definition, ''he 'cause[d] . . . contact with the genitalia . . . of any person with an intent to arouse or gratify the sexual desire of any person.' The 'any person' was himself, and he caused Lewinsky to make contact with his genitalia, for purposes of arousal or gratification of his sexual desire, by inviting her to do so.'' Quod erat demonstrandum.

This kind of precision punctuates Posner's account. So does his clear defense of the notion of perjury as something that cannot be evaded by deliberately clever, open-ended parsing or by self-evidently fallacious lapses of memory, every variation of which Clinton deployed. Could Clinton, for example, have plausibly claimed he and Lewinsky were never ''alone,'' because there had always been other people nearby, without committing perjury? By any reasonable legal judgment, not a chance. ''It is not a defense to perjury that the declarant assigns private meanings to words, provided he knows they're private,'' Posner writes.

The question, of course, is whether brazen perjury and obstruction of justice were sufficient for impeachment. Here, Posner concedes that the issue is far more complicated. He rightly, in my view, believes the independent counsel law to have been bad law, and is a fierce critic of the Supreme Court's perverse 1997 decision in Clinton v. Jones, which allowed Paula Jones's suit to go forward while Clinton was in office. He is also a skeptic about the scope of sexual harassment law. But given the fact that these laws exist, Posner credibly shows how Clinton's offenses were clearly within the realm of offenses that could be held to be impeachable. Impeachment, in other words, was in no measure a constitutional ''coup,'' as some Clinton apologists absurdly argued. Clinton's conduct -- not Kenneth Starr's excessive ''zeal'' -- put the possibility in play. Posner effectively dispenses with the notion that some other public figure -- like a mayor or governor -- would never have triggered the same sort of prosecutorial energy, and suggests that in a criminal trial a person who had done what President Clinton had done would have received ''a prison sentence of 30 to 37 months.'' Not the most serious offense in the world, but surely serious enough.

But serious enough to evict the President? Despite the promise of several chapter titles, Posner never quite tells you what he would have done had he been a senator. He's better at disposing of phony arguments in Clinton's defense than he is in arguing why Clinton should have been removed. (I suspect, in a pinch, that Senator Posner would have voted to acquit him.) Posner harshly criticizes Starr for overloading his report with gratuitous sexual detail, but acquits him, as most other legal experts have, of any serious professional misconduct as independent counsel. His scorn for the way in which the House of Representatives released a torrent of raw grand jury material to the public is more palpable. The Republicans' reckless desire to incriminate Clinton may in fact have done more damage to the rule of law by undermining the secrecy of grand jury testimony than anything Clinton tried to get away with.